Wednesday, April 8, 2009

Now on SSRN: Law, War, and the History of Time

My new paper, Law, War, and the History of Time, is now available on SSRN. It is very much a work-in-progress, and I would appreciate any feedback. Here's the abstract:

Assumptions about time are an aspect of the basic architecture of our thinking about law and war. Time is thought to be linear and episodic, moving from one kind of time (peacetime) to another kind of time (wartime) in sequence. Law is affected by what time it is, with a pendulum swinging from greater government power and lesser rights during wartime, to the opposite in peacetime. Drawing upon works on the history of time, this paper argues that our conception of "wartime" is culturally constructed and historically contingent. This understanding of war and time is also in tension with the practice of war in 20th century U.S. history.

The paper turns to World War II, which is thought of as a traditional war, with clear temporal limits. But this war is harder to place in time than is generally assumed, as the different legal endings to the war span over a period of seven years. The fuzziness in the war's timing affects scholarship on rights and war, as scholars who believe themselves to be writing about the same wartime are not always studying the same years.

The difficulty in confining World War II in time is an illustration of a broader feature of the twentieth century: wartimes bleed into each other, and it is hard to find peace on the twentieth century American timeline. Meanwhile, as all twentieth century wars occurred outside U.S. borders, a feature of American military strategy has sometimes been to increase the engagement of the American people in a war, and at other times to insulate them. Isolation from war enabled the nation to participate in war without most citizens perceiving themselves to be in a wartime. The essay closes with a discussion of the way anxiety about temporality surfaces in contemporary cases relating to Guantanamo detainees.

The paper is part of a larger project that places war at the center of 20th century U.S. law and politics, rather than viewing war as something that had an episodic impact.

14 comments:

I know very little about the history of WWII, but I have a comment on your more general remarks at page 6.

The so-called "arrow of time" is one of the great unsolved mysteries of science right now. Our most fundamental understanding of the universe at a microscopic scale does not recognize a directionality to the progression of time -- if we watched a cartoon showing how atoms and molecules move according to quantum mechanics, we couldn't tell whether it was running forwards or backwards. Obviously the same is not true of a movie showing macroscopic objects. I think there is a reasonable chance that we'll get some new insight on this within our lifetime.

There are some (like Julian Barbour) who argue that time doesn't really exist except as a predictable parameter (that runs indefinitely into both the past and the future). But these arguments generally overlook the fundamental limitations on our ability to measure and observe the universe.

There are others (like Roger Penrose) who argue that the arrow of time is linked with gravity -- a hypothesis that remains out of reach of experiments because gravity is so weak a force compared to the others at work at the microscopic scale.

Regardless of what is really going on, it seems safe to say that any fully general theory will recognize a role for both linear and cyclical approximations of time in different contexts.

On a different note, If you haven't seen them, I recommend the new translation of Harald Weinrich's On Borrowed Time, and the work by Carl Honore on the slow movement.

Thank you for this very interesting comment. I have been reluctant to say anything about the literature in physics or philosophy -- probably the two fields in which the study of time is most well developed. But it is interesting the way scholars from so many different fields (from physics and philosophy to anthropology to history and critical theory) can converge, so that an argument against an essense of time has parallels across fields, although they manifest themselves in very different ways.

The fact that academic rewards and recognition are easier to win by specializing in narrow fields than by taking a broader view and making connections between them may be a serious flaw in the institutional structure of academia.

The antidote, on my view, is to bring academia in closer contact with the non-academic world so that scholars from many fields may find themselves in common cause against the most challenging practical problems in industry and government.

I haven't read Mary's article as yet but plan to do so soon. My comment concerns E.O. Wilson's "Consilience," the subtitle of which is "The Unity of Knowledge." It's been a few years since I read this and Wendell Berry's response: "Life Is A Miracle" with the subtitle "An Essay Against Modern Superstition." While I think Wilson had the stronger argument, I don't think the scientific method can be effectively applied, at least presently, to other branches of knowledge, such sociology, economics, the arts, the law, religion, etc. From the standpoint of the law and especially legal historians, consider the Heller case with its 5-4 decision after considering (did they?) the 71 briefs filed. Wilson had a good idea, but we're not there yet.

The only thing that I'd raise as a point of caution is the Second Law of Thermodynamics. That entropy increases implies a before and after, a 'time' when there was less entropy in the aggregate and the subsequent increase in entropy.

As for time and gravity, consider that we understand the universe to be (at least) 4-dimensional, with three spatial dimensions & a temporal dimension. This was one of Einstein's insights. Hence "space-time."

I would be curious about what Michael F. Martin (and others) think about Shag's comment. I didn't take Michael's reference to Wilson to suggest that all should be subsumed under the "scientific method" -- so that a convergence of ideas would result in the dominance of a particular methodology. But I would be interested in hearing more, esp. from readers of Wilson.

I just typed out a whole comment that disappeared, so let me try to quickly summarize:

Basic point is that we historians often overlook that time (in the sense of actual time pressures) often influences how government lawyers approach their tasks, and the legal conclusions they reach. Specifically, I’m thinking of Jack Goldsmith’s book “The Terror Presidency” where he notes that much of the post-9/11 legal architecture took shape within a few weeks/months of the attacks, with government lawyers working under tremendous time pressure and strain. He attributes this time pressure to some of the flawed reasoning that undergirded the OLC “torture memos”, for instance, which (upon further reflection, and with more time to think about it), he subsequently revoked.

It’s actually remarkable how much wide-ranging, long-impacting national security law is created under such time pressure. I’m reminded of Ex Parte Quirin, the initial opinion of which was decided hurriedly by the Supreme Court (in an effort to beat the deadline of the Nazi saboteurs’ execution), after a hearing that itself was hastily called by the Chief Justice during the Court’s summer recess. Quirin’s impact, of course, is tremendous, but it was put together in a very short period of time.

An interesting contrast is the Pentagon Papers case. The case is better remembered for its First Amendment implications, but Erwin Griswold’s entire position before the Supreme Court rested on the national security implications of the case. The Papers were first published starting in mid-June 1971; the Court heard argument on June 26 and decided it by June 30. Several of the justices (most notably CJ Burger, and Justices Harlan & Blackmun) grumbled in their opinions that the whole thing had been rushed. This is one case where the “time crunch” actually went against the government’s assertion of a national security interest, and created far-reaching law expanding (or affirming) individual liberties.

Mary reads me correctly. I do not take the scientific method to be the only or even the preferred methodology for understanding the universe. The universe is quite large, and there are some parts of it that are susceptible to the rules of scientific inquiry (especially the parts that are subject to reproducible experiments). (It's interesting that time seems to enter in even to understanding the benefits and disadvantages of different methodologies.)

My understanding of consilience is not as a program for extending the scientific method to every domain of knowledge. Rather, I believe it suggests the benefits of considering theories that arise in one domain -- theories that may have arisen within the constraints of very different methodologies -- and applying them in others to see whether they bring new understanding.

So, for example, would you believe that evolutionary biology has anything interesting to say about electrical engineering without seeing it for yourself?

The larger point is that, when isolated, domains of knowledge seem to develop idiosyncrasies and legends that are difficult to dispel so long as the domain remains impenetrable to non-specialists. This is probably due to the social dynamics surrounding the field of experts who are gatekeepers within each domain. Doesn't every field have an ethical duty to keep itself open enough to the outside world to avoid these sorts of pathologies? Think of the field of economics right now if you need an illustration of the ugly consequences.

Also, in direct response to the comment on the second law, that commenter may find it interesting to consider that the Poincare conjecture was solved, in part, by reflecting deeply upon the nature of entropy. The Ricci flow can be associated with a gravitational flow, and (as I said) I don't think it's unreasonable to believe that we'll get some new insights into this in our lifetime.

One question we might need to ask about Wilson's 'consilience' thesis is what is its relation to the idea of a 'universal' scientific theory. If we take the general theory advocates to be claiming that there will be a single, unified, scientific theory that explains all the subject matter of the sciences, and if Wilson's consilience notion is a form of that claim, then Wilson is simply assuming that the sciences will be united in their explanation of the objects they study.However, I read Wilson as Shag does: as claiming that all knowledge can be seen as converging into some grand scheme. And I think that Wilson presumes the unifying methodologies will be those of the physical and mathematical sciences.

"The Papers were first published starting in mid-June 1971; the Court heard argument on June 26 and decided it by June 30. Several of the justices (most notably CJ Burger, and Justices Harlan & Blackmun) grumbled in their opinions that the whole thing had been rushed."

which reminded me of George Will's WaPo OpEd today praising baseball umpires, describing them as "baseball's judicial branch." Would that SCOTUS could make decisions as promptly as baseball umpires - and as accurately. CJ Roberts during hearings on his nomination mentioned that the role of a Justice is comparable to that of an umpire. But how quickly are the Justices' decisions made? Consider the aid the Justices get - the 71 briefs in Heller I referenced on an earlier comment. Consider SCOTUS 5-4 decisions (as in Heller). With the Pentagon papers half a month of deliberation was not enough for some of the Justices. Compare this with the umpire making a split second decision. With the need for making instant decisions, perhaps the umpire lacks the time to be subjective. And umpires can withstand the heat when their decisions are instantly challenged, whereas George Will's decision on global warming takes time to challenge. I'm not suggesting that the Justices should make instant decisions. But how old was the Second Amendment when Heller - 5-4 - was handed down?

Mary, I just finished reading your article. First off, I really appreciate your analysis. I think the area you're broaching is underdeveloped and holds much potential.

One question I have is on the discussion of time and era. You indict the current frame of time centered around war. I agree with your arguments here, but I wonder, what is the alternative? The discussion about non-linear time and how it binds us together as a nation is convincing. Is your recommendation that our culture would be better off abandoning linear time? If we should not define time by wars, what should we define it by? Or do you fundamentally reject even the classification of time into eras?

When I first looked at Professor Dudziak's article, I immediately thought of our ways[s] of thinking about past 'wars.' Think, for example of THE Hundred Years' War. Of course, 'it' was not a uniform period of constant warfare all over the relevant territories at all. Neither was THE Thirty Years War.So, while I recognize that global terrorism presents a special problem for both historical and legal analysis, I'm inclined to agree with [another commenter] that 'time' for us as humans is significantly determined by 'how we organize our lives.' What time is, in itself [if it has any existence in itself], metaphysically and physically undoubtedly constrains our organization of it for our own purposes, just as the facts of our biology constrain our conceptions of childhood and aging. That 'time' appears to us to move in a linear fashion and in a single direction is probably an epistemic constraint imposed on us by our psychology. While there have been both attempts in both philosophy and physics to describe a non-linear and non-unidirectional time, these notions seem to be deeply foreign to how we think - or are able to think.

One additional comment here. Very recently a new theory of self-organized criticality was developed in physics. A simple application is to sandpiles. (Like in an hourglass?) In a nutshell, when a low frequency event (sand being added to the system) occurs within a system in which relaxation process (i.e., avalaches, tectonic plate slips) are high-frequency, then what will be observed is stable equilibriums punctuated by major catastrophes.

As I read this article I kept thinking of what is revealed in the last two paragraphs: Pres. Eisenhower’s “farewell” speech in 1961 giving caution to the influence of the military industrial complex. The continued 20th century acceleration of wars thereafter (hot, cold and warm) might suggest that capitalism, globalization and neo-colonialism accelerated by technology advances have contributed to this condition of continuing wars.

Post 9/11/01, Pres. Bush’s National Security Strategy (Oct., 2002) in effect declared to the world that America is #1 militarily, #1 economically and #1 politically and will do whatever it takes to maintain these positions. While America continues #1 in these categories, they have been eroded in recent years.

Are continual wars necessary in this day and age? Can civilization as we know it continue without wars? Is democracy throughout the world necessary for peace? If so, can this be accomplished by peaceful means? It is said that that democracies don’t go to war against each other. But if all the nations of the world were democracies, isn’t it possible that wars could break out between them for economic or other reasons?

Many books and articles have been written in recent years about empires, those from the past, how they came about, how they eventually declined, including America as empire (which many in America would deny). Joseph Schumpeter’s creative destructionism of capitalism may have some applicability to empires and hegemony.

Getting back to Bush’s National Security Strategy, it may be different only in degree from earlier ones, suggesting that at least since WW II it makes no difference which party is in control in America when it comes to wars. Perhaps this is attributable to the roles of “The Power Elite” who have over the years advised the party in power as well as significantly influenced the economy of America and thus the world. I’m influenced here by C. Wright Mills’ “The Power Elite” published some 4-5 years prior to Ike’s “farewell” speech.

I look forward to this work in progress as it progresses. I don’t know if the “time” connection will work out with respect to wars, but perhaps the principle “for every action there’s an equal and opposite reaction” may provide a connection to why nations go to war.